Ulmer & Bagley
[2009] FMCAfam 255
•24 March 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ULMER & BAGLEY | [2009] FMCAfam 255 |
| FAMILY LAW – Interim parenting orders – unacceptable risk of abuse or harm – allegations of sexual abuse – child suffering from anxiety – supervised time. |
| Family Law Act 1975 ss.60CC(2), 60CC(3) |
| Goode & Goode [2006] FamCA 1346 Harry & Harry [2007] FMCAfam 616 |
| Applicant: | MR ULMER |
| Respondent: | MS BAGLEY |
| File Number: | SYC 5638 of 2008 |
| Judgment of: | Altobelli FM |
| Hearing date: | 17 March 2009 |
| Date of Last Submission: | 17 March 2009 |
| Delivered at: | Sydney |
| Delivered on: | 24 March 2009 |
REPRESENTATION
| Solicitor Advocate for the Applicant: | Mr Rahme |
| Solicitors for the Applicant: | Mark Rahme & Associates |
| Counsel for the Respondent: | Mr Batley |
| Solicitors for the Respondent: | Williams Roncolato Lawyers |
| Solicitor Advocate for the Independent Children’s Lawyer: | Ms Power |
| Solicitors for the Independent Children’s Lawyer t: | Legal Aid Commission of New South Wales |
THE COURT ORDERS PENDING FURTHER ORDER THAT:
The child, [X] born in 2000, live with the mother;
[X] is to spend time with the father as follows:
(a)From Saturday, 28 March 2008, and for a period of three Saturdays thereafter, from 9 am till 12 noon; and,
(b)From Saturday, 25 April 2008 and for a period of three Saturdays thereafter, from 9 am to 1 pm; and,
(c)From Saturday, 23 May 2008, and for a period of three Saturdays thereafter, from 9 am to 2 pm; and,
(d)From Saturday, 20 June 2008, from 9 am to 3 pm.
[X]'s time with the father is to be at all times in the presence of any one of either Ms U, Mr G, or Ms C, one of whom are also to be present at changeovers.
For the purposes of implementing these orders:
(a)Changeover is to occur at Gloria Jean's at [omitted] Shopping Centre;
(b)The mother is to personally deliver [X] to the changeover point and to forthwith leave the shopping centre after the father has met [X];
(c)The father is to personally return [X] to the changeover point and is to forthwith leave the shopping centre after the mother has met [X].
The father and the mother are restrained from:
(a)Speaking or permitting any other person to speak to or about the other parent or their family in a negative, offensive or unpleasant fashion in the child’s hearing;
(b)Discussing any proceedings between the parents or the parental relationship in the presence or hearing of the children or permitting any other person to do so.
The Independent Children's Lawyer is requested to meet with [X] and explain the orders made today as soon as possible and preferably before 28 March 2009.
IT IS NOTED that publication of this judgment under the pseudonym Ulmer & Bagley is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 5638 of 2008
| MR ULMER |
Applicant
And
| MS BAGLEY |
Respondent
REASONS FOR JUDGMENT
Introduction
The present matter is an interim application relating to [X], born in 2000, and currently eight years old. The applicant is her father. He is a [occupation omitted]. He is 46 years old. The respondent is her mother. She, too, is a [occupation omitted], though not presently working as such. She is 45 years old. In short, [X] has not been spending time with her father since October or November last year. The respondent mother has serious concerns about [X]'s welfare if she were to spend time with the father.
Background
[X]'s parents married and commenced cohabitation in 1999 and separated in February 2006. Her father [and her mother both live in] suburbs of Sydney.
Whilst there are no orders relating to [X], there are property settlement orders entered into in May 2006.
A brief procedural history of the current proceedings is important. The father's application was filed on 25 September 2008 and came before me on 31 October 2008. Despite the rules, the mother did not file a response or affidavit.
On 31 October 2008, a child dispute conference was ordered and the mother was directed to file and serve her response and affidavit by 10 November 2008 and the matter was set down for interim hearing on 5 December 2008.
On 7 November 2008, a child dispute conference was held. The child dispute conference memorandum reports as follows. In terms of the issues there was no agreement reached about where [X] would live. The memorandum notes:
[The] father is proposing that the child spend increasing amounts of time with him, to eventually result in three days of each week. The mother raised concerns regarding the child's welfare and safety when in the father's care, with the result that she believes only supervised time would be appropriate.
Under the heading, "Case management options", the family consultant recommends that a Order 30A report be prepared. The memorandum notes:
According to the mother, the child has developed several anxiety and stress behaviours. A child psychiatric report would seem appropriate. It would seem important that the Reporter be given access to all pertinent documentation, including psychiatric and counselling reports, school, DOCS and police reports.
In addition, the family consultant recommended that “given the parent’s extreme diversity of opinion as to what is in the child's best interests” an Independent Children's Lawyer should be appointed.
It is interesting to note the absence in the Child Dispute Conference Memorandum of any explicit reference by the mother about [X] having been sexually abused by the father.
On 5 December 2008, the matter came before Terry FM, as I was away on circuit. What occurred on this date became contentious at a later date, so it became necessary to obtain a transcript of the proceedings before her Honour. What is clear from that transcript is that
Her Honour appointed an Independent Children's Lawyer and appointed Dr Potter, a psychiatrist, as the Part 15 expert to prepare a report at equal cost to each party. It is now also clear from the transcript that Her Honour was not prepared to hear an interim application in this matter without an Independent Children's Lawyer. She expressed concern about the material filed by both parties. She was very critical of the respondent mother for seeking to file her evidence, which purportedly raised serious issues about the welfare of [X], on the day itself notwithstanding the directions made by me on 31 October 2008. Her Honour also dealt with subpoena issues and stood the matter over to 26 February 2009.
On 26 February 2009, Ms Power appeared for the first time as Independent Children's Lawyer. Matters relating to subpoena were dealt with. An interim hearing was allocated for 17 March 2009, and a final hearing date was appointed for 14 July 2009 for three days.
My judgment, of course, relates to the interim hearing on 17 March 2009. There are a number of concerning aspects to this case. What is of significance, I believe, is that on 17 March 2009, Counsel for the respondent mother articulated for the first time in Court that the mother was alleging that the father had sexually abused [X]. I regard this as significant. Counsel who appeared for the respondent mother before Terry FM did not describe the situation in those terms. The respondent mother's own assertions of this are deeply buried in her own evidence - that is, her affidavit sworn 5 December 2008. For the first time in Court on 17 March 2009, the mother's case was clearly articulated on the basis that the mother believed that the father had sexually abused [X] and that there was an unacceptable risk of abuse if there was any contact between the child and the father.
Competing Proposals
The father's proposal is contained in a minute of order that was filed in Court. He seeks orders that [X] live with the mother and that he have unsupervised contact with her on alternate weekends from 6 pm Friday until 6 pm Sunday. Alternatively, from 6 pm Friday to the following Saturday. He proposed an order for travel arrangements to be shared. He also submitted an alternative proposal that he have supervised contact with [X] on alternate weekends from 6 pm Friday until 6 pm Sunday or, alternatively, from 6 pm Friday to 6 pm Saturday, supervised by at least one of the paternal grandparents or his sister, Ms U.
The Independent Children's Lawyer also provided a Minute of Order. She proposed that [X] continue to live with the mother and that [X] spend time with the father each Saturday from 9 am till 12 noon, to be supervised by the paternal grandparents or Ms U. She also proposed changeover at the residence and other ancillary orders.
The mother's proposal is contained in her response and that is that there be no contact. Notwithstanding that, I was informed by her Counsel that, if the Court were to nonetheless consider contact, it should be supervised by the maternal grandmother and the maternal aunt. Her Counsel stressed to me, however, that the mother's primary position remained that there should be no contact.
Issues
The main issue in this case is what parenting order is in the best interests of [X]. That is trite. In reality, one must determine the issues by reference to how the respondent mother's case was conducted. Her case was framed, in reality, on the basis that there was an unacceptable risk of abuse if [X] were to have any time with her father. That is the primary issue I need to determine.
The secondary issue is what time, if any, and under what circumstances, should [X] spend with her father, subject, of course, to the resolution of the issue of unacceptable risk. Perhaps another way of expressing the issue is by using the language of s.60CC(2). Is there a need to protect [X] from physical or psychological harm, from being exposed to or subjected to abuse, neglect or family violence? Moreover, how should any finding about this be balanced against the other primary considerations in s.60CC(2), and the additional considerations in s.60CC(3)?
Applicable Law
The application is, of course, governed by part VII of the Family Law Act. As this is an interim application, the procedure is influenced by the Full Court's decision in Goode & Goode [2006] FamCA 1346 and I incorporate into these reasons paragraphs 68 and 72 of the Full Court's Judgment.
68. In our view… the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.
72. In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.
From the mother's perspective, this is a case about unacceptable risk of abuse and I incorporate into these reasons a quite lengthy passage from an earlier decision of mine in Harry & Harry [2007] FMCAfam 616, at paragraphs 9 to 16.
9. A comprehensive statement of the applicable law in these difficult cases is contained in the Full Court’s decision in W and W (abuse allegations: unacceptable risk) [2005] Fam CA 892; (2005) FLC 93-235; (2005) 34 Fam LR 129, at paragraphs 92-115. Whilst this extract is lengthy, the law is complex, and the context of these cases is always one of high levels of emotion and concern for the parents and other persons involved. It is important for all who are affected by this case to know what the relevant law is:
92. The High Court’s unambiguous statement in M and M is that a trial Judge should not make a positive finding of sexual abuse unless the high standard of certainty referred to in Briginshaw (now s 140 of the Evidence Act 1995 (Cth) (“the Evidence Act”)) is discharged.
Unacceptable risk test
(a) What is meant by “unacceptable risk”?
93. In his submissions before us counsel for the father has referred us to recent decisions of this Court decided after M and M in dealing with cases involving child sexual abuse, and in particular, with the manner in which subsequent decisions have applied the principles enunciated therein.
94. Prior to our consideration of these decisions we find it appropriate, as a starting point, to re-state what may be regarded as obvious, that is, the significant detrimental harm to a child who is sexually abused. Although contained in a dissenting judgment, the discussion of Fogarty J about the effect of sexual abuse on a child remains as poignant and relevant as it was in 1996. In N and S and the Separate Representative (1996) FLC 92-655 at 82,709 his Honour said:
“(i) The reality of sexual abuse
The sexual abuse of a young child by a parent or care-giver or other person associated with that household is so alien to the concepts and actions of most people in the community that there is an understandable resistance to accepting that it may or does occur. Regrettably, the actuality is otherwise.
...
It is difficult to overstate the importance of protecting children from sexual abuse, and from the consequences which often follow from sexual abuse. Sexual abuse involves the most severe exploitation of children, the most serious invasion of their rights to personal integrity and freedom, and the most serious denial of their rights to personal growth and development. Its effects, both in the short and long-term, can be devastating.”
95. We also have regard to Fogarty J’s acknowledgment of false allegations. At 82,711 his Honour, referring to Thomas J’s judgment in S v S [1993] NZFLR 657, said:
“courts must be aware that not all allegations of sexual abuse are true. False allegations may be made either by parents acting in good faith, as a result of a misperception of information about their child, or by parents deliberately fabricating allegations in order to gain an advantage in proceedings. Ambiguous events often have an innocent explanation.”
96. The core principles in the determination of a case of alleged sexual abuse are those enunciated by the High Court in M and M:
“In proceedings under Pt VII of the Act in relation to a child, the Court is enjoined to ‘regard the welfare of the child as the paramount consideration’ (sec. 60D). The paramountcy of this consideration in proceedings for custody or access is preserved by sec. 64(1). The consequence is that the ultimate and paramount issue to be decided in proceedings for custody of, or access to, a child is whether the making of the order sought is in the interests of the welfare of the child. The fact that the proceedings involve an allegation that the child has been sexually abused by the parent who seeks custody or access does not alter the paramount and ultimate issue which the Court has to determine, though the Court’s findings on the disputed allegation of sexual abuse will naturally have an important, perhaps a decisive, impact on the resolution of that issue.
But it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. Proceedings for custody or access are not disputes inter partes in the ordinary sense of that expression: Reynolds v. Reynolds (1973) 47 A.L.J.R. 499; 1 A.L.R. 318; McKee v. McKee (1951) A.C. 352 at pp. 364-365. In proceedings of that kind the Court is not enforcing a parental right of custody or right to access. The Court is concerned to make such an order for custody or access which will in the opinion of the Court best promote and protect the interests of the child. In deciding what order it should make the Court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access, but because it is prima facie in a child’s interests to maintain the filial relationship with both parents: cf. J. v. Lieschke (1987) 162 C.L.R. 447 at pp. 450, 458, 462, 463-464.
Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the Court’s determination of what is in the best interests of the child. The Family Court’s consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court’s wide-ranging discretion to decide what is in the child’s best interests cannot be qualified by requiring the Court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.
In considering an allegation of sexual abuse, the Court should not make a positive finding that the allegation is true unless the Court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v. Briginshaw (1938) 60 C.L.R. 336 at p. 362. There Dixon J. said:
‘The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.’
His Honour’s remarks have a direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute. It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the Court when it is called upon to decide what is in the best interests of the child.
No doubt there will be some cases in which the Court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the Court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the Court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the Court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.
In resolving the wider issue the Court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child’s welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her.
Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a ‘risk of serious harm’ (A. v. A. (1976) V.R. 298 at p. 300), ‘an element of risk’ or ‘an appreciable risk’ (M and M (1987) FLC ¶91-830 at pp. 76,240-76,242; (1987) 11 Fam. L.R. 765 at pp. 770 and 771 respectively), ‘a real possibility’ (B and B [Access] (1986) FLC 91-758 at p. 75,545), a ‘real risk’ (Leveque v. Leveque (1983) 54 B.C.L.R. 164 at p. 167), and an ‘unacceptable risk’ (In re G. (a minor) (1987) 1 W.L.R. 1461 at p. 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.”
97. An examination of cases in Australia following M and M and subsequent to the amendments to the Act by reason of the Family Law Reform Act 1995 (“the Reform Act”) demonstrate some of the practical difficulties in applying the principles enunciated in M and M.
98. In B and B the trial Judge was found by the Full Court to have correctly applied the Briginshaw test in reaching his finding that the father had acted in a sexually inappropriate way with the children the subject of the application, and then considering that the children should continue to have access (as contact was then defined) to the father, such access to be supervised for a defined period with provision for a further expert report. In their joint judgment Fogarty, Baker and Purvis JJ at 79,778 discussed the relevant principles to be applied in a sexual abuse case having regard to the High Court’s decision in M and M. Their Honours said:
“The test propounded by the High Court in M and M and which is authoritative in this jurisdiction, is:-
‘that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.’ (at page 77,081)
The ‘unacceptable risk’ test is therefore the standard used by the Family Court to ‘achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access’. In other words, where the Court makes a finding of unacceptable risk it is a finding that the risk of harm to the children in having access with a parent outweighs the possible benefits to them from that access.
...
It should be noted that the M and M ‘unacceptable risk’ test is employed within the context of ‘resolving the wider issue’, namely the determination of what is in the best interests of the child, to which principle the unacceptable risk test was said by the High Court to be ‘subservient and ancillary’. The overriding consideration in all custody and access decisions is the welfare of the child: see s64(1)(a) of the Family Law Act and Brown and Pedersen (1992) FLC ¶92-271.”
99. Their Honours further commented on the fact that a finding of unacceptable risk in respect of unsupervised contact did not “preclude a finding that there is no unacceptable risk to the child if supervised contact is ordered”.
100. One of the issues in B and B was whether an order for supervised contact by a family member or friend was appropriate. The Full Court’s findings on supervised contact have been subject of criticism in subsequent cases (see Re C and J at 83,341 and 83,342 per Fogarty and May JJ). The discussion in the latter case on types of supervision and treatment are particularly apposite in this case.
101. It is however important to note at the time of both decisions the availability in Australia of professionally supervised contact in accredited children contact centres was not widespread, the Commonwealth Government funding the first pilot of 10 children’s contact centres commencing in 1995-1996 through its Family Relationship Service Program.
102. In K v B the father asserted that the trial Judge had not applied the appropriate test in determining whether an unacceptable risk of sexual abuse existed. The trial Judge found, on the balance of probabilities, he could not be satisfied that the father had sexually abused the child, and went on to find however that he could not be satisfied he did not do so. The trial Judge then determined, after looking at the evidence as a whole, there was an unacceptable risk of sexual abuse if he ordered unsupervised contact. In his dissenting judgment Kay J emphasised the right of a child to maintain personal relationships with both parents on a regular basis and said at 80,967:
“With the greatest respect to their Honours in B and B I have difficulty in seeing how that conclusion can be drawn from the words in M and M. All I read M and M as saying in the passage referred to is that the presence or absence of a risk of sexual abuse is not necessarily determinative of whether access is granted. Other issues such as the effects on the child of having to confront the abuser need to be taken into account.”
103. In N and S allegations of sexual abuse of a 4 year old child were made with the child naming the father as the perpetrator. The father denied the allegation. The trial Judge had before him expert evidence from a child psychiatrist. The trial Judge said that the expert had stated that it was most likely that the child had not been abused by either the father or the mother’s new partner, that the child used accusations to get attention from the mother, and the child was not truthful. There was evidence before the trial Judge of a social worker from a child sexual assault service who believed the child had been sexually assaulted by the father. The trial Judge’s findings on sexual abuse were recorded by the majority (Kay and Hilton JJ) at 82,732 as follows:
“Coleman J, as well as Dr Fairley, concluded that he could not entirely discount the possibility that the child may have been sexually interfered with and may have been sexually interfered with by the father. Coleman J concluded on the balance of probabilities that this did not happen. He was not however prepared to conclude that it certainly could not have happened.”
104. Their Honours noted, as in this case, that the appeal was from a discretionary judgment, and the relevant principles to be applied in such a case. They then (at 82,740) referred to the passage in M and M (set out by us in paragraph 96) and said:
“Whilst the High Court did not further expand on what circumstances might create such an unacceptable risk, Coleman J, weighing up all the material before him, concluded that there would be no such risk to the child during the proposed six month access trial.”
105. In his judgment, which was in dissent as to the outcome of the appeal, Fogarty J discussed the question of what is meant by the term “unacceptable risk” and reviewed earlier authorities concluding “it is inevitable that Courts will have to make some effort to quantify the relevant risk”. He then said at 82,714:
“In asking whether the facts of the case do establish an unacceptable risk the Court will often be required to ask such questions as: What is the nature of the events alleged to have taken place? Who has made the allegations? To whom have the allegations been made? What level of detail do they involve? Over what period of time have the allegations been made? Over what period of time are the events alleged to have occurred? What are the effects exhibited by the child? What is the basis of the allegations? Are the allegations reasonably based? Are the allegations genuinely believed by the person making them? What expert evidence has been provided? Are there satisfactory explanations of the allegations apart from sexual abuse? What are the likely future effects on the child?
This is not a catalogue of the correct questions, but a reminder that it is questions such as these which are required to be considered in deciding whether an unacceptable risk may be shown. The weight to be attached to the various answers to the relevant questions will inevitably vary from case to case. But it is essential that questions like these be asked.”
106. His Honour went on to discuss the standard of proof necessary for a finding of unacceptable risk. His Honour did not advocate a two step approach, that is, a consideration of whether or not sexual abuse was proved on the balance of probabilities, and a second step of assessing unacceptable risk to the same standard. He expressed the requirement at 82,715 as follows:
“There is no requirement to ask whether the evidence satisfies a balance of probabilities finding in favour of abuse, though that may nevertheless be useful in some cases. There is, however, a requirement to ask whether the evidence establishes an unacceptable risk.”
107. The Full Court in WK v SR (Baker, Kay and Morgan JJ) at paragraph 48 reaffirmed the consequences to a child in a residence or contact dispute of a finding of sexual abuse proved to the standard required by s 140 of the Evidence Act and held:
“...In these circumstances, evidence which, for example, is relevant and probative in relation to the question of unacceptable risk of abuse occurring, may not be relevant or probative when deciding whether or not a specific incidence of abuse has in fact occurred.”
108. In V and V [2004] FamCA 1081 Finn, Kay and Holden JJ considered specifically s 60B of the Act and whether the benefits of contact for the children outweighed the risks of such contact. In this case the trial Judge found that the children had been sexually abused, but was unable to determine the identity of the perpetrator. The trial Judge refused to make orders for either supervised or unsupervised contact on the basis that such contact would pose an unacceptable risk to the children. Having carefully reviewed the evidence in the case, their Honours set out the submission made by counsel for the Child Representative at paragraph 56 as follows:
“Accordingly it was put by Mr [M] that any finding that the father had in fact been involved inappropriately with these children, or might have been inappropriately involved with the children to the point where he would create a serious danger to the children could only be sustained if the Court had been properly aware of the gravity of upholding such an assertion in accordance with Briginshaw principles. An order for no contact is a grave order which should only be made upon very strong proper supporting evidence.”
109. The Full Court held that the trial Judge was in error in finding there was a real risk of sexual abuse if there was unsupervised contact, having made no positive finding that it was more likely than not that the father was the perpetrator.
110. In TF and JF and Children’s Representative [2005] FamCA 394 May J highlighted that the “concept of unacceptable risk is one that is far from settled in its application to many family situations”. May J, having found that the evidence in the case, “objectively viewed reveals the potential for an unacceptable risk to the children if contact with the father is not supervised...” then referred to the difficulty associated with long term supervised contact and said “the necessity for contact to be supervised apparently indefinitely leads to the need to finely balance what is in the children’s best interests”. Her Honour then said:“Whilst supervised contact in this case will protect the children from any potential physical harm, the effect on their emotional well-being cannot be ignored.”
111. In summary, the law is well settled as to the standard of proof required to make a positive finding of sexual abuse, and that such a finding should not be made unless a trial Judge is satisfied to the highest standard, on the balance of probabilities abuse has occurred. We accept, as a matter of practice, a trial Judge will almost inevitably be required in a case where sexual abuse allegations are raised to consider whether abuse has been proven on the balance of probabilities as well as considering whether or not an unacceptable risk of abuse exists. The High Court in M and M recognised the difficulty in defining with any degree of precision what constitutes an “unacceptable risk” and the cases determined after that decision testify to the difficulty. However, the questions posed by Fogarty J in N and S, and referred to by us in paragraph 105, do provide a structure or framework which may assist a trial Judge to assess future risks to a child.
(b) The contact issue112. In Re W (Sex abuse: standard of proof) at 93,192 and in TF and JF at paragraph 53 the Court emphasised the importance of maintaining a worthwhile relationship between a parent and child, and that termination of such relationship “ought, in most cases, be the course of last resort”. We acknowledge that s 60B emphasises the objects of Part VII of the Act and that generally children have a right to know and be cared for by both their parents. This provision was the subject of discussion by the Full Court in B and B: Family Law Reform Act 1995 (1997) FLC 92-755 at 84,213-84,217. The objects provision is, of course, subject to the exception that the provisions do not apply when it is or would be contrary to a child’s best interests.
113. The practical difficulties in assessing an unacceptable risk are highlighted by May J at in paragraph 74 of TF and JF. Further, at paragraph 94, the tension between the protection offered by supervised contact (and the maintenance of a child’s relationship with his or her parent) and that child’s emotional well-being is considered. We have not in our discussion of unacceptable risk canvassed in any detail the question of the impact of contact on the resident parent as it is not relevant in the actual circumstances of this case, nor is E’s emotional well-being in issue.
114. Further we note it is not always possible to provide for appropriate supervision particularly if a children’s contact centre is not a practical option. Centres too have their limitations. The guidelines established between courts administering the Act and children’s contact centres accredited by the Commonwealth Department of Family and Community Services recognise that “long term supervision may not be in a child’s best interests” and place emphasis on the need to move to “self management” by parents and others availing themselves of the present restricted services.
115. We appreciate that the decisions in these difficult cases have the potential for long term consequences for a child, and that they require very careful consideration. We do not think it is appropriate or practical to set guidelines as to when supervised contact could or should be ordered, or whether such contact should be in a professionally run contact centre or supervision by private arrangement. The latter, which was deemed appropriate in the circumstances of this case, affords a potentially longer term solution which is likely to afford the opportunity for enjoying more realistic and relaxed parenting time between a parent and child.10. In WK v SR (1997) FLC 92-787, 22 FamLR 592 the Full Court emphasised the standard of proof that applies in these cases at para 47:
In children’s matters under Part VII of the Family Law Act, where the issue is a child’s contact or residence with a significant person in his or her life, the grave consequences of a finding of sexual abuse cannot be overstated. Accordingly, before trial Judges find themselves impelled to make a positive finding of sexual abuse, as opposed to a finding of unacceptable risk, the standard of proof they are required to apply must be towards the strictest end of the civil spectrum as set out in Briginshaw and s140 of the Evidence Act 1995 (Cth). Inexact proofs, indefinite testimony, or indirect inferences are insufficient to ground a finding of abuse.
11. In Re W (Sex Abuse: Standard of Proof) [2004] FamCA 768, FLC 93-192, in referring to WK v SR the Full Court observed at paras 18 and 19:
18. In setting out those authorities it does not appear that his Honour paid any attention to the views of the Full Court in WK v SR where the Court emphasised the very high standard by which a Court needs to be satisfied on the balance of probabilities that something has actually occurred. Unless such a rigorous approach is taken, where the often-inevitable result of a positive finding is a cessation of the relationship between parent and child, there is a major risk of inflicting upon the parent and child the disastrous effects of a positive finding that is reached in error.
19. The termination of a worthwhile relationship between the parent and child ought in most cases be the course of last resort. The Court should not shy away from reaching such a result in an appropriate case but at all times judges should be conscious that the adversarial or inquisitorial systems often reach results that are artificial. The truth does not always come out. A false negative finding accompanied by appropriate safeguards as to the future relationship between parent and child, such as adequate supervision to guard against possible abuse, may be far less disastrous for the child than an erroneous positive finding that leads to a cessation of the parent-child relationship. The Court needs to be remain conscious of this imperfection at all times.
12. In that same decision, the Full Court made some important comments about expert evidence in the context of these cases, at paras 38 and 39:
38. In Re W Abuse Allegations; Expert Evidence (2001) FLC 93-085 Nicholson CJ and O'Ryan J (with whom Kay J agreed on this point) warned of giving weight to expert evidence of a psychiatrist who had not seen the parties nor the children but had reviewed the material. Their Honours said at para 147 "...there are grave dangers in reliance upon expert evidence given in such circumstances."
39. Whilst much of their Honours' rejection of the evidence of the psychiatrist in Re W appears to turn on the fact he was retained by one side and must have brought unconscious bias to his task, in our view the criticism of relying upon an opinion about the ultimate issue from a witness who has not seen the parties nor the children remains just as valid when the witness is called by the court. If an expert witness still purports to give an opinion as to the ultimate issue then such opinion would be expected to be heavily qualified by the expert having regard to the fact that the expert had not seen the parties nor the children.
13. Another important statement from this Full Court decision is found in paragraph 45. It is important because it is in the interests of the administration of justice, and more importantly in the interests of the children involved in these cases, that sensible concessions be made so that both interim and final hearings can focus on real issues.
45. The concession by counsel in final address that the evidence would properly lead the trial Judge to conclude the much lower barrier of "unacceptable risk" had been reached could not be seen as some sort of admission of guilt by the husband and those appearing for him. It was no more than an acceptance of the forensic reality. The child had made damning disclosures. The father had denied them. All the Court needed to be satisfied of was whether an order for contact "would expose the child to an unacceptable risk of sexual abuse". An acceptance of the husband's unshaken denials would leave the child's disclosures unexplained. An acceptance of the disclosures as proof that the father behaved with gross impropriety towards G would mean a total rejection of the denials. In our view an acceptance by counsel that the likely outcome lay somewhere in between was not surprising nor could it be seen as an admission of guilt.
14. It is frequently the case that allegations of sexual abuse are raised in interim proceedings. Wherever possible it is important for the evidence of the protagonists, usually but not always parents, to be tested by cross-examination in some limited fashion. This enables the Court to form an impression, albeit only an impression, about the veracity of the claims made and of the character of the parents. Notwithstanding this, a Court should be wary about making findings of credit after only an abbreviated hearing.
15. Often it will not be possible to test the evidence in interim proceedings. The Full Court decision in Goode & Goode (2006) FLC 93-286 continues to apply in these cases. The Full Court in Vasser & Taylor-Black [2007] FamCA 547 made these comments, at paragraph 52 of its judgment, about allegations of abuse in interim proceedings:
At paragraph 5 of her written submissions counsel for the independent children’s lawyer, having earlier referred to the test set out in M and M (supra) namely, “the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse”, submitted:
When allegations of abuse arise in interim proceedings, the court must weigh the competing risks of abuse, including the risk of interrupting or severing a relationship between a child and a parent. In order to weigh the competing risks, the court should analyse what the risk is. To simply state that there is a risk of psychological abuse is not providing an analysis of the risk to the child, nor does it assist in determining what, if any, safeguards could be put in place to ameliorate the risk. (paragraph 5).
16. It should also be remembered that Division 12A of Part VII of the Act applies as much to proceedings involving these serious allegations as it does to other child-related proceedings. In each case consideration needs to be given as to whether s.69ZT(3) should be invoked, thus reinstating the application of certain provisions of the Evidence Act 1995, in whole or in part, as regards an issue in the proceedings. The Court needs to give consideration to this, whether or not it is raised by the parties, but the Court also needs to have regard to the need to protect the child from harm, as well as protect the rights of those against whom serious allegations are directed. The Court must also not lose sight of the fact that even though s.100A of the Act has been repealed thus potentially excluding evidence of disclosures made by children if s.69ZT(3) is invoked, s.69ZV seems to be intended to, in effect, reinstate s.100A.
Evidence
The father relied on five affidavits filed by himself and five other witnesses. I note that the father's main affidavit consisted of 150 pages including annexures and 103 paragraphs. His solicitor also tendered in evidence records produced on subpoena by the school where [X] attends.
The mother relied on her affidavit sworn 5 December 2008. It is
138 pages long and consists of 291 paragraphs. She also filed a Notice of Child Abuse on 5 December 2008.
The affidavits of both the mother and the father are full of irrelevant material and bear all the hallmarks of having being prepared by the clients themselves. The presence of such a large volume of irrelevant material distracts the Court from its fundamental task i.e. to make a decision that is in the best interests of the child based on the evidence. I record here what I said to the lawyers on 17 March 2009, after I heard the submissions:
If your clients are drafting their own affidavits, please stop it. Before anything else is filed in this matter, I want the legal representatives to have applied their forensic judgment to the material. It must be relevant. It must be cogent. If it is not, the consequences will be visited upon the lawyers first and the clients second.
Discussion about evidence
The father's evidence can be briefly summarised as follows. Apart from setting out detailed information about past events and his proposals, it seems that the father was intensely frustrated at the level of contact that he was having with [X] and the lack of progress in formalising contact arrangements, such that he eventually initiated these proceedings. According to the father, he was not allowed to have overnight or unsupervised contact with [X].
There was clearly some concern from both parents evidenced in the correspondence annexed to the affidavit about [X]'s anxiety. The correspondence also does tend to indicate that [X] has been involved in these proceedings by way of either direct discussions with her mother or in her presence and see in this regard annexure U to the father's affidavit sworn 25 September 2008 and filed on that date.
In the correspondence annexed to the various affidavits of the father, there is no correspondence from the mother or her solicitor that seems to articulate reasons for the denial of unsupervised contact or overnight contact. It is all very nebulous and vague and left to inference that there was some reason relating to [X]'s welfare that somehow precluded her from spending this type of contact with the father.
On reading the father's affidavit closely, one might have formed the impression that [X] was suffering some type of anxiety that both parents seemed to be concerned about in their own way. The impression is also that there was a high level of conflict between the parents, especially in the last half of 2008, and disrupted communication between them. What is certainly absent from any of the correspondence from the mother's solicitor or from the mother herself is an assertion that the father had sexually abused [X].
It is necessary to undertake a somewhat detailed analysis of the mother's affidavit in view of the seriousness of her assertion that there was an unacceptable risk of abuse if [X] were to spend time with her father. It should be noted, of course, that the Notice of Abuse filed
5 December 2008is the first document filed on behalf of the mother that articulates a concern of a sexual nature in those terms. I will return to this but I must say it was surprising indeed that this reference is contained in the Notice of Abuse at point 6 of the same but was not a concern explicitly articulated by the mother's Counsel in Court on
5 December 2008.
I turn now to the mother's affidavit. At paragraph 229 the mother refers to the two week period leading up to 1 March 2008 and describes herself becoming increasingly concerned about [X]'s tearfulness and overreaction. At paragraph 230 there is reference to "night terrors" in which [X] calls out "Daddy". At paragraph 231 the mother refers to a telephone conversation with the father about these issues. The mother annexes her file note of the conversation as Annexure N to her affidavit. The mother says to the father that they needed to sit down and discuss issues to do with [X] - "serious issues". According to the mother, the father said:
Yes she has problems. She has serious problems that are going to affect her seriously when she is a teenager.
At paragraph 232 there is evidence about events on 1 March 2008 that relates to a toy bear whose pants kept falling down. At paragraph 233 there is reference to [X]'s anxiety and a further discussion about a toy bear. At paragraph 234 there is reference to [X] referring to a “monster” under her bed and packing to go to the snow. It goes on to paragraph 235. Between these two paragraphs, the mother describes how [X] then lay on her back on the bed, positioning her body closer to the foot of the bed than to the head of the bed and bending her knees up with her feet flat on the bed. She pushed her body up towards the head of the bed by straightening her legs to show how her pants would come down. Later, she started gyrating her hips up and down.
Paragraph 236 contains evidence and I quote a number of sentences from the same:
…From about 12.15 am until about 4 am on 1 March 2008 I thought about that portion of the events, I considered what it meant, was it possible that [X] had seen something, who had access to [X] and I concluded that Mr Ulmer was the only person who had access to [X]…
…Whilst I lay in bed that night I also thought about other aspects of the events of that night and I thought back over things that had happened in the past that had seemed strange to me at the time. I also thought about [X]'s reactions at certain times to events in the past. Everything seemed to fall into place. I reached a conclusion and I jumped out of bed…
…The thought that I had forced [X] to spend time with Mr Ulmer even when it was clear, particularly on the last occasion, that she did not want to go with him kept entering my head and I kept trying not to think about anything until my mother and my sister arrived. At one stage, as I was standing next to the telephone in the kitchen after I had called my sister on the telephone, the thought that I forced [X] to go with Mr Ulmer again entered my head and I felt great sobs, that seemed to start in my stomach and move up my body, and go through my body and I realised that I was making a sound with each sob that I had never made before. I consciously forced myself to stop…
At paragraph 240, the mother deposes to [X] demonstrating with her hands a "bulge" in the context of her leggings. At paragraph 241, referring to events on 2 March 2008, the mother speaks to the principal of [X]'s school and says, "You have to trust me. I believe [X] has been sexually abused by her father." I comment that it is significant that this is the first recorded articulation by the mother of her belief, and it is contained in an affidavit sworn 5 December 2008, almost nine months' later.
At paragraph 242 of the mother's affidavit, she recounts a conversation with her sister on 2 March and I quote an extract from that:
I said to my sister words to the effect of: “[X] and I should move out and rent somewhere. As long as we live here, we are also putting mum and dad and all of you at risk. Mr Ulmer would have nothing to lose. If DOCS or the police take action, Mr Ulmer could lose his practising certificate, his job, his reputation. What would he have left? He doesn't have the relationship with his family that we do…”
At paragraph 245, the mother gives evidence about the inquiries that she made on 3 March 2008 and I quote as follows:
My sister and I made numerous telephone calls on that day and during the following days attempting to make contact with [X]'s psychiatrist and also to try to work out what action should be taken in the circumstances. From recollection, we spoke to numerous people at various organizations including at least one child protection unit, [C] Health Centre and [B], including another psychiatrist at [B]. My sister and I both spent many hours in the days following 1 March 2008 making telephone calls in an attempt to work out the most appropriate action to take. The information provided to us by the various people we spoke to at those various organisations was often inconsistent and in some cases contradictory. We were told by one organization that I had to take [X] to the Child Protection Unit at [W] for an examination and assessment as the first step. When I spoke to someone at a child protection unit, I was advised that children were only to be taken to the Child Protection Unit if they were actually bleeding or had apparent serious injuries. We were told by one person that the appropriate course was to make a report to the Police. I was told by someone else that the appropriate course was to make a notification to DOCS and that DOCS would make a report to the Police. I was told by another person that the appropriate course was to take [X] to a Child Protection Unit and they would make the notification to DOCS. Another person told me that I should make an appointment for [X] to see her doctor.
At paragraph 256 of the mother's affidavit, she refers to the notification that she made to DOCS in the week following 1 March 2008. At paragraph 259, the mother deposes to having telephoned the father on
8 March 2008and had a conversation with him. She says nothing about the events that had occurred or her concerns. At paragraph 264, the mother deposes that, on 10 March 2008, she had arranged for [X] to see her psychologist, Ms T, on 11 March and also deposes to the fact that [X] has been seeing Ms T once a week.
At paragraph 267, the mother deposes that on 13 March 2008, she took [X] to Dr L, a paediatrician, who physically examines [X]. It is important to set out this evidence and I quote from paragraph 267:
During that last conversation with me, Dr L said to me amongst other things words to the following effect: “[X] has no visible tears but she also hasn't slept over with her father for about 4 weeks and she hasn't seem him for a few weeks so that is not indicative. I have not done a full examination of her hymen. She said her father uses swear words and that upsets her because her school teaches her that this is wrong. She said her father yells. [X] said that her father squeezes her arm. She said that she sleeps with her father in the bed when she sleeps over with her father. She said she dresses herself when she is at the father's house. When I asked her questions about whether anyone had touched her in a way that made her feel uncomfortable she said no. But her answer was hesitant. There is not enough for me to make a notification. [X] would need to say what was done to her and by whom…”
At paragraph 268, the mother deposes that, on 14 March 2008, that she met with the father, that they had a conversation, but, again, she says nothing about her concerns, the previous events, other than referring to [X]'s anxiety. Indeed, she offers to facilitate contact between [X] and her father on the next day.
At paragraph 269, she deposes that, on 16 March 2008, [X] spent time with her father, in the mother's presence. At paragraph 273, the mother deposes that, on Easter Monday 2008, [X] again spent time with the father in the mother's presence. At paragraph 274, the mother deposes that, in mid to late-March 2008, she had a telephone conversation with [X]'s psychiatrist and I quote an extract from the said paragraph:
During the appointment with [X]'s psychiatrist I gave him as much of a run down of the relevant facts that had taken place since [X]'s last appointment with him as I was able to in the time allocated for the appointment. Towards the end of that appointment, [X]'s psychiatrist said to me words to the effect of: “I won't make a notification to DOCS since you have made a notification”.
It is important to note that so far neither [X]'s paediatrician nor her psychiatrist, both of whom are mandatory reporters, made a notification to DOCS.
At paragraph 278, the mother deposes to the father and [X] spending time together on the weekend after 4 April 2008 but again in the mother's presence. At paragraph 280, she refers to the father spending time with [X] in the mother's presence on 12 April 2008 and, likewise, on 20 April 2008, there is reference to this in paragraph 282.
The mother caused to be filed a Notice of Abuse on 5 December 2008 and it refers to three things. In part E, the particulars about the alleged abuse are set out. It states as follows:
Involvement of the child [X] in sexual activity by Mr Ulmer leading to actions and behaviour in the child as particularised in paragraphs 231, 232, 233, 234 and 235, of the affidavit of
Ms Bagley sworn 5 December 2008.
In part F of the Notice dealing with the alleged risk of abuse, the mother particularises the risk as follows:
Risk of involvement of the child [X] in sexual activity by
Mr Ulmer as particularised in paragraph 231, 232, 233, 234 and 235 of the affidavit of Ms Bagley sworn 5 December 2008.
Finally, in part G there are particulars set out about alleged family violence. As these are lengthy, I will not set them out here. It is important to recognise that before me, at the interim hearing, the mother's Counsel articulated her case on the basis of unacceptable risk of sexual abuse. Family violence was not raised as the main issue or even as one issue. Family violence is a matter to be explored further at a final hearing.
The Independent Children's Lawyer indicated to the Court that she had read Ms T's notes, pursuant to the leave previously granted to her only. It should be recalled that Ms T is [X]'s psychologist. The Independent Children's Lawyer explained to the Court that, even though Ms T is a mandatory reporter, she did not make a notification to DOCS. Furthermore, the Independent Children's Lawyer indicated to the Court that there was nothing in Ms T's notes that are not already raised in the mother's affidavit. I observe at this point that here is yet another professional who has seen [X] in the context of allegations of sexual abuse, who is also a mandatory reporter, but who has, in fact, not made a notification to DOCS.
The only other evidence before me were documents produced by [S] School which is [X]'s school and which was tendered in evidence by the father's solicitor. This evidence indicates as follows. Firstly, that in the half yearly report in 2008, it indicates that [X] was absent from school 12 days. In the yearly report for 2007, it indicates that [X] was absent from school for 19 days in the second half of the year. In the 2007 half-yearly report, it indicates that [X] was absent from school for eight days in the first half of the year. I observe that [X]'s absences from school are at a level that are, in my opinion, of concern and I trust the Independent Children's Lawyer will explore this further at a final hearing.
Within the school records there is a July 2008 report from [R]. It should be recalled that the mother deposes to contacting a number of people and authorities including Rivendall at paragraph 245 of her affidavit. Indeed, the context and the content of that affidavit clearly suggests that the mother had expressed concern about sexual abuse to [X]. It is hard to infer otherwise. But this is what the letter from Dr P, a child and adolescent psychiatrist actually says. The letter is dated July 2008 and is addressed to the principal of [X]'s school. The letterhead says, "[R] Child, Adolescent and Family Services, [omitted] Hospital, [address omitted]". The letter is signed by Dr P, a child/adolescent psychiatrist. The content of the letter is as follows:
[X] is a client at the [C] Community Centre, and I reviewed her situation with her mother on 30th July 2008.
She presents a complex and challenging case, in domains including social, psychological and educational. It is my clinical opinion that she fulfils all DSM IV criteria for general anxiety disorder, complicated by behavioural and interpersonal difficulties, which is impacting on her social and school functioning.
We fully support any application by your school to obtain and support individualised teaching and behavioural assistance in class for [X] as she clearly requires this to fulfil educational and social potential.
I note that total absence of any reference at all to the allegations about [X] having been sexually abused.
In addition, there are four records of meetings that took place at the school between the mother and [X]'s teacher between 21 February 2008 and 23 October 2008. It is significant that, in these documents, there is a stark contrast between the first interview on 21 February and the last interview on 23 October 2008. For example, in the first interview, the note refers to [X] feeling very anxious, often feeling sick or unwell. It records, "[The mother] was concerned with [X]'s anxiousness and she said [X] is scared of loud voices". However, the record on 23 October notes as follows: "[X] has improved dramatically, she behaves like all students in the class. [X] has many friends. [X] is not anxious."
The school also produces a copy of the Risk of Harm Report submitted by the principal to the DOCS Help-Line on 3 March 2008 at 2.30 pm. This is what the principal records in the notification under the heading, "Safety Concerns":
The mother (Ms Bagley) phoned me on Sunday 2/3/2008 very distressed. Through discussion and role play [X] said there was a monster and she wanted her mum to pack their bags and immediately leave for the Snowy Mountains where she would be safe. [X] is very timid and reserved. She struggles to concentrate (though focusing). Her literacy has developed slowly. In term 4 2007 she developed a facial tick (no explanation).
Curiously, there is no reference whatsoever to sexual abuse despite the mother's assertion at paragraph 241 that she told the principal "I believe [X] has been sexually abused by her father". I find it difficult to accept that a professional school principal making a Risk of Harm Report to DOCS as required by statute, would not record the words "sexual abuse" if the mother had in fact used them.
Submissions
The Independent Children's Lawyer submitted that, as the allegations of the mother were untested and as the father had not seen [X] since November and as Dr Potter's appointments were in April, the best course was for [X] to see her father under supervision. She observed that supervision protected the father from further allegations and provided some reassurance to [X] who is clearly an anxious child.
The father's solicitor submitted that the evidence did not give rise to the need for supervision. However, this was only faintly pressed and quite properly so, in my opinion, in view of the factors raised by the Independent Children's Lawyer, especially the protective function of supervision from the father's perspective, as well as the long time since there had been contact. Accordingly, the father's solicitor's main submissions were about who should supervise the father's time with [X].
Counsel for the mother was clearly in a difficult position in that he had both a duty to the Court and to the respondent mother. I record here that, in my opinion, Counsel for the mother said everything that could possibly be said on behalf of the respondent mother, given the evidence before the Court. He quite correctly described the mother's concerns as a "subjective perception that the father had sexually abused [X]". As I suggested to him, however, it may be a subjective concern that appeared to have no objective basis on the evidence. When I asked him to attempt to articulate or to identify where, precisely, is the unacceptable risk of abuse of [X], he could not do so. However, he valiantly submitted that there were at least six reasons why [X] should not have time with the father:
a)The subjective beliefs of an educated mother;
b)The clear anxiety suffered by [X];
c)The absence of independent professional evidence to provide reassurance to the Court;
d)The relatively short period of time before the hearing;
e)The even shorter period of time before Dr Potter meets with the family;
f)The length of time since [X] had contact with her father.
Discussion and findings
Unacceptable risk
Even in the context of an interim hearing, on the material before me, I cannot conclude that there is an unacceptable risk of sexual abuse to [X] from her father. I stress that, in an interim hearing, the threshold for a concern about unacceptable risk of abuse is, in my opinion, a relatively low one, but, even so, the evidence does not justify it. The mother's evidence lacks persuasive force for a number of reasons.
a)The timing of the articulation of the mother's concerns. On the mother's own evidence, she had concerns that the father had sexually abused [X] since at least March 2008 but these concerns are neither expressed to the father or aired in a public context until her affidavit filed 5 December 2008, after the father had commenced proceedings in this Court.
b)The mother's own actions so far as the father's time with [X] are quite inconsistent with her concerns about [X]'s safety. In these proceedings, the mother's primary position is that there is an unacceptable risk of abuse to [X] such that she should have no time with her father based on the evidence she adduces. Nonetheless, the mother allows [X] to have time with her father, albeit in her presence, right through to October/November 2008. The mother's actions seem strangely inconsistent with her stated concerns.
c)[X] makes no disclosure to the mother or to any other person which indicates she may have been sexually abused.
d)The behaviour of [X] referred to in the mother's affidavit as founding a concern about the risk of abuse seem innocent, even as described by the mother herself. They do not appear to constitute inappropriate sexualised behaviour by the child.
e)Despite the mother's referrals to [X]'s paediatrician, psychiatrist and psychologist and her assertions to them that [X] has been sexually abused, none of these people, all of whom are mandatory referrers, make a notification.
f)There is a significant inconsistency between the mother's evidence about what she told the school principal in a telephone conversation and what the school principal notified DOCS via a risk of harm report. This inconsistency lessens the weight that would otherwise be given to the mother's assertions.
I therefore find there is no unacceptable risk of abuse from the father, based on the assertions of sexual abuse.
Is there an unacceptable risk of abuse or harm flowing from other factors?
The evidence about [X] being an anxious child is of concern. In this regard, her psychiatrist's evidence does seem inconsistent with the observations of the school teacher: the former is quite disconcerting, the latter quite positive. There are various factors at play in this case that give rise to concerns about heightening [X]'s anxiety. The mother subjectively believes there to have been sexual abuse. Objectively, on the evidence before me, there is no basis for that belief. Nonetheless, [X]'s mother believes that and, given the obviously close relationship between mother and daughter it would be difficult, if not impossible, for the mother not to project her concerns on [X] or in her presence. Also, the fact is that [X] has not seen her father for some time, irrespective of the rightness or wrongness of this. To minimise any further anxiety, if [X] is to resume contact with her father, it must be done with care and sensitivity and with a view to reducing anxiety. Supervision seems to be an appropriate intervention to try to alleviate both the mother's concerns, subjective as they are, and to mitigate any anxiety that [X] has. Supervision also has the obvious benefit to the father of protecting him against further allegations. I, therefore, find that supervision is necessary, but not because there is any risk of sexual abuse. Rather because of the circumstances that I have just referred to.
Supervision
Prior to 17 March 2009, the mother's position was unequivocally that there should be no contact between the father and [X]. On 17 March 2009, faced with proposals from both the father and the Independent Children's Lawyer that supervised contact would be in [X]'s best interests, the mother's position changed. She proposed initially that the mother herself should be the supervisor, but in the alternative, either the maternal grandmother or a material aunt. As it became more and more apparent from the submissions and the exchange between the Bench and Bar table that supervised contact was likely, the mother's position hardened somewhat. Her Counsel, clearly on instructions, conveyed to the Court that the mother believed that [X] would resist any contact with her father unless it were in the presence of the mother or someone from the mother's family. Shortly after that, the mother's Counsel indicated to the Court that the mother had instructed him that [X] had a conversation with the mother after [X] had spoken to the Independent Children's Lawyer, and indicated to her mother that, when the Independent Children's Lawyer had spoken to her about spending time with her father, [X] thought it would be in the mother's presence. In this regard, the Independent Children's Lawyer had submitted to the Court that, based on her discussions with [X], [X] was not adverse to the idea of time with her father under supervision.
Quite apart from the fact that, once again, I have clear concerns about the mother involving [X] in these proceedings, the fact is that the mother feels very strongly about who should supervise. Both the Independent Children's Lawyer and the father's solicitor submitted that the mother would be inappropriate as a supervisor. Clearly that is the case. There is a high level of conflict that now exists, even if it did not exist beforehand. But, quite apart from that, I doubt if [X] could ever have meaningful time with her father if her mother was in the proximity, having regard to the mother's concerns.
The mother proposed that her own mother and sister be supervisors but she submitted no affidavits from either and I do not even know if they would be willing. I would not accept the mother's sister in any event. As the mother describes the situation in paragraph 245 of her affidavit, the sister was clearly and actively involved in this matter in such a way as to lead me to be concerned that she might be so aligned to the mother's case and the mother's concerns, that she could not bring a degree of objectivity to supervision.
Similarly, I do not know anything about the maternal grandmother's availability. In any event, the Independent Children's Lawyer made the compelling point that [X], on the mother's own evidence, clearly spends quite a deal of time with her grandmother and aunt, and the need is for her to re-establish her time with the father's family.
The father proposed that contact be supervised by either of the paternal grandparents or his sister, Ms U, each of whom filed affidavits in these proceedings indicating a willingness to act in that capacity. The Independent Children's Lawyer supports these people as supervisors. On the father's evidence, and even partly on the mother's evidence, [X] knows these people and has been involved with them in the past. In any event, the mother made no submission about the lack of suitability of these three. Accordingly, they will be the supervisors.
The contact order
The Independent Children's Lawyer proposed three hours each Saturday between 9 and 12. This is a very conservative approach in the circumstances of this case and I am only prepared to accept it as a temporary measure whilst [X] lives with her mother and the time with her father progressively increases through to the hearing in July. As I have indicated above, the need for supervision is not because of the risk of sexual abuse, it is because of concerns I have about [X]'s anxiety, and even [X]'s mother's anxiety based on her beliefs. One of the big issues in this case at the final hearing will be to better understand [X]'s anxiety, and perhaps more importantly what is causing it and how [X] maybe assisted. Gradually increasing the father's time from three hours each week to six hours by July, gives her the opportunity to resume her meaningful relationship with her father, whilst also protecting her from any anxiety she has, perhaps about being away from her mother.
[X]'s anxieties can be assisted in other ways. Firstly, changeovers should not be at the home of either the mother or the father because this gives rise to the prospect of conflict between them in the confines of a relatively private place. Both the mother and father refer in evidence to previous problems they have encountered. Changeover should be in a public place, and preferably one in which [X] is familiar. The evidence of both parents indicates that they have previously used Gloria Jean's at [omitted] as a place for contact to take place from or at least commence.
The said shopping centre also presents opportunities for the father and [X] to do activities she will enjoy, such as plaster painting and other children's activities. The order will be that changeover occur there.
Orders restraining the parties from discussing the proceedings and denigration
On 17 March 2009, I made an order on a "without admissions" basis restraining both parents from discussing these proceedings with [X], or in her presence. As I had indicated at least twice in these reasons, I fear that [X] has been embroiled in these proceedings and in the parental conflict far too much, whether advertently or inadvertently. This must stop immediately and that will be the effect of the order I make.
In addition, the affidavits of both parents and the father's witnesses indicate that there have been opportunities in the past for both parents to denigrate each other and I will make an order, the effect of which is that this is to cease.
Conclusion
The evidence indicates that both during the marriage and after separation [X] had a meaningful relationship with her father. Late in 2008, problems arose with the father spending time with [X] and this has led to an interruption in the meaningful relationship that clearly existed. There is a clear benefit to [X] for that meaningful relationship to be resumed.
There is nothing in the evidence that causes concern about [X]'s safety whilst in her father's care. There is certainly no evidence of an unacceptable risk of sexual abuse. However, she is an anxious child, for reasons yet to be understood. She has not seen her father for some time. The mother clearly is anxious arising out of firmly held subjective beliefs that [X] has been sexually abused. For these reasons, and the other reasons articulated in this Judgment, supervision is warranted, and a gradual reintroduction of time is appropriate. Overnight time is premature at this point for the same reasons.
There is no evidence before me relating to [X]'s views that I would place any weight on. I cannot rely on evidence from the mother about what [X] says. That evidence is clearly clouded by the mother's subjective beliefs about what has occurred, even though, in my judgment, there is no objective basis for those beliefs.
There are issues to be explored at a final hearing about the nature of [X]'s relationship with her parents. In particular, one of the issues may well be whether the mother's relationship with [X] is inappropriately enmeshed or dependent. I make no finding about this. It is simply an issue I flag for the final hearing.
There are issues to be explored at a final hearing about the willingness of each parent to facilitate a continuing relationship between [X] and the other parent. The mother's subjective beliefs were expressed in a very inconsistent manner, and one of the issues to be explored at a final hearing will be whether these beliefs were reasonably held in view of the evidence, and whether it indicates a lack of commitment to encouraging [X]'s relationship with the father. As for the father, one of the issues at a final hearing may be whether his actions in contributing to the conflict that exists between the parents manifests a similar lack of commitment to [X]'s ongoing relationship with her mother. I again stress I make no findings about these matters, but merely raise them as issues to be explored at a final hearing.
The changes that are proposed in these orders are not drastic and they are, in my opinion, necessary. [X] is used to spending time with her father in the presence of others. Changeovers will be in a familiar environment. There will be no overnights. I accept that not having the mother there will be a change, but not having the mother there during her time with her father is, in my opinion, essential for that contact to work.
There are no issues of practical difficulty and expense.
One of the issues at a final hearing may be the capacity of both parents to provide for [X]'s emotional needs. The material filed by both parents does raise concerns about the psychological health of one or both of them. Hopefully, Dr Potter will be able to comment further on this. I stress that I make no findings about this, I simply raise it as an issue to be explored at the final hearing.
[X]'s health will be an issue at the hearing. She appears to be suffering from anxiety, the causes of which are either unknown or have not been articulated. One of the issues for the final hearing may well be whether the parents have in some way contributed to this anxiety, either because of their own personalities or because of the conflict surrounding the separation.
There are allegations of family violence which do not preclude the order I make, but which do need to be explored further in the context of a final hearing.
I certify that the preceding seventy-five (75) paragraphs are a true copy of the reasons for judgment of Altobelli FM
Associate: 24 March 2009
Date: Anthony Thompson
0
5
1